Eagle Feather Linda Keen

An Eagle Feather For Linda Keen? The Supreme Court of Canada has consistently held that the principles of fundamental justice require quasi-judicial administrative tribunals to be free from political influence or interference. The principle requires careful attention to ensure that the appropriate degree of independence is maintained. (http://www.nuclearsafety.gc.ca) Interestingly enough these same demands for political independence and opportunity to access objective and effective remedy in the exercise of justice and human rights, including safety, are similar demands made by Aboriginal Canadians, and particularly the Kichesipirini Algonquins, who claim ongoing traditional jurisdiction and a particularly intimate relationship with the actual site of AECL in Chalk River. Gilbert LaBine, born in 1890 at Westmeath, Ontario, Kichesipirini territory, was a successful prospector and mining promoter in the Northwest Territories discovering a valuable deposit of silver mixed with pitchblende on the shores of Great Bear Lake. This discovery led to the development of the Eldorado Mine and the townsite of the infamous Port Radium by his company, Eldorado Gold Mines. As a war measure, the Canadian government had arbitrarily expropriated the Eldorado mine in 1943. As a federal crown company the mine was then used to supply uranium for the Manhattan Project. Uranium became critically important for the success of the Manhattan Project, the American / United Kingdom / Canadian scientific and military operation launched in the early 1940s to produce the atomic bombs used in the bombings of Hiroshima and Nagasaki. During WWII the Combined Policy Committee generated the immediate construction of the world’s first large-scale heavy water pilot plant / reactor to be built in Canada. Under a cloak of extreme wartime secrecy this facility had to be built as quickly and quietly as possible. The site would require immediate access to very deep water for generation and cooling purposes. On August 21, 1944 it was decided to locate the heavy water project at Chalk River, a place of spiritual significance to the Algonquin people because of the water depth and close proximity to other sacred sites. The local people were told that it was a plastic processing plant. More than 3,000 hectares along the Ottawa River were now expropriated, including farm land from several Kichesipirini families, 30 km northwest of Pembroke, Ontario, and thus, Chalk River Laboratories (CRL) had its beginnings. During the first several decades of operation at Chalk River, without any safety standards or protocols in place, nuclear wastes were handled carelessly causing widespread radioactive contamination of the site far beyond what would be considered acceptable standards today. The local residents exposed were never properly informed, and those civilians, especially the persons of Aboriginal descent more dependent on local natural resources for food, have still never been identified or monitored. Fifty years of nuclear activities have left a heavily contaminated site. According to expert sources radioactive wastes are still leaking into the Ottawa River, which is an important source of food, recreation and drinking water used by numerous communities downriver in Ontario and Quebec, including the Nation’s capital city of Ottawa. The world’s nuclear weapons establishment, beginning here, operated in secret and deceit for many years, creating broad webs of public distrust and employee denial. This site, with its legacy of secrecy, expediency, and experimentation is now owned and operated by Atomic Energy of Canada Limited (AECL), the federal crown corporation that designs and markets CANDU reactors. NRU is now an aged research reactor, slated to have beenn retired years ago. AECL fumbled the design, construction and startup of the replacement Maple reactor with a decadeof delays and millions of dollars over budget. In 2006 AECL assures CNSC there would be safety upgrades made to NRU

including emergency power supply to two heavy-water pumps. AECL then lied to the CNSC when they submitted a Safety Analysis for NRU relicensing that said all the required safety modifications were done. During a routine meeting in November of 2007 CNSC learned that the pumps were in fact not connected. We should all remember that AECL loses revenue to a private company. Under the Mulroney leadership, one of AECL’s hopes of sustainability, the lucrative revenue from medical isotopes productions, was sold from the Crown corporation to the private firm MDS Nordion. Most of the revenues from isotope productions would always go to MDS Nordion as per their 40 year supply agreement meaning taxpayers have to carry all the expenses of reactor and isotopes production, liabilities, decommissioning, and maintenance but MDS Nordion would still get most of the revenue. Sweet. The local population, having not recovered from the economic loses associated with declines in the forest industry is now becoming a populace dependent on the subsidized nuclear industry as their major employer and economic contributor. Lacking any economic diversity, fearful of job loss or community revenue losses few local people or community leaders will now oppose this leeching giant, this Windego, on their shorelines. The Canadian Nuclear Safety Commission was established to protect the interests of people and the environment against the risks inherent to the nuclear industry. The Canadian Nuclear Safety Commission (CNSC) is an independent federal government agency that regulates the use of nuclear energy and material to protect health, safety, security and the environment and to respect Canada’s international commitments on the peaceful use of nuclear energy. The Canadian Nuclear Safety Commission (CNSC) operates and enforces regulations under the Nuclear Safety and Control Act . Nuclear activities are carefully regulated to ensure their safe operation. The CNSC is comprised of two components: the CNSC staff organization and the Commission Tribunal. The Commission Tribunal is designed to make independent decisions on the licensing of nuclear-related activities in Canada. Independent agencies, boards and commissions exercise special jurisdiction in modern democratic societies providing effective mechanisms regarding important and often controversial decisions in the public interest. Independent agencies are most necessary where the decisions involve complex issues that have significant societal impact on matters related to health and safety, security, environmental protection, monopoly control, labour relations, consumer protection, and market failure. (See Regulatory Independence: Law, Practice and Perception: A Report to the CNSC by the Institute On Governance.) Independent agencies play an important role in the separation of powers considered fundamental in common law and modern democracies. In the case of the CNSC, the Commission reports to Parliament through the Minister of Natural Resources, but not to the Minister. “Maintaining an arm’s length relationship to Ministers is particularly important for those organizations whose mandate is to make decisions that determine or regulate the privileges, rights or benefits of Canadians. Governments delegate decision-making powers to these bodies, in part, to preserve public confidence in the fairness of the decision-making process. In turn, the exercise of these powers requires careful attention that the appropriate degree of independence is maintained.” (Guide Book for Heads of Agencies). The Nuclear Safety and Control Act does allow cabinet to issue directives but they must be of general application on broad policy matters (section 19). It goes against the rule of law and the principle of

seperation of powers between the judiciary and the executive that the government exercise any authority regarding the autonomy of the CNSC. Whereas The Nuclear Safety and Control Act, (section 19), does allow cabinet to issue directives they must be of general application only, on broad policy matters. The mininster is not authorized to give any directive to the Canadian Nuclear Safety Commission (CNSC) on a specific case such as that experienced in Chalk River. Also located within Kichesipirini jurisdiction and unceded traditional territory is SRB Technologies Canada Inc., a tritium light manufacturer operating in a mini-mall on Boundary Rd., Pembroke, Ontario. This nuclear facility is located near several businesses, a hockey arena, and a residential area, including new subdivisions with young families. SRBT uses tritium to manufacture glow-in-the-dark signs. This company is considered a source of tritium environmental contamination in the Pembroke area. There is a growing body of evidence, which suggests that tritium is mutagenic (i.e. mutates genes causing hereditary defects) and teratogenic (i.e. causes malformations of an embryo or fetus). The most sensitive populations to tritium are considered to be fetuses, young children and women of childbearing age. Canadian Nuclear Safety Commission researchers found that levels of radioactive tritium in groundwater on plant property were up to 80 times the allowable limit for drinking water. SRBT does not yet have an approved decommissioning plan to deal with the current contamination issues and no financial guarantee for decommissioning or cleaning up their mess. As a Class 1 Nuclear facility, it was required to do so under the new Nuclear Safety and Control Act that came into force in 2000. The federal nuclear regulator's report calls SRB's record on environmental protection "significantly below requirements." Previously CNSC inspectors identified several irregularities and illegal operations by SRB Technologies (Canada) Inc. while under Commission license, but the regulator nonetheless continued to award new licenses to SRB. It was after Kichesipirini environmental steward Al Villeneuve intervened that the CNSC in early 2007 reversed its endorsement of the faulty SRBT. Villeneuve argued: “We have been here since time out of mind. As our ancestors did, we continue to follow ‘Algonkin Law’ as it pertains to the outright protection of this Earth our Mother, and all that exists on it.” Referring to a long documented history of persecution and genocide he continued: “Through history from first contact in 1603, the Kichesipirini/Algonkin people have suffered greatly at the hands of non-natives and government(s). We suffered as a nation, perhaps the greatest attempted genocide in Canada…” Villeneuve declared: “SRB Technologies, in order to reduce their toxic, nuclear waste contaminating their site, believes it is better to use our river for a ‘nuclear dump.’ You have no right to pollute the waters of our Spiritual and Historic Heartland… You have no right to dump any garbage… into our waters. While this land and this river is still under dispute with our nation and the governments of Canada and Ontario, we as members of the Kichesipirini/Algonkin nation will do all that is in our power as a nation of people to alert others of any destruction of our homelands including the United Nations.” He then went on to hold personally responsible the members of the CNSC, including Linda Keen, for any breaches of law, associated damages and the continued persecution of the Kichesipirini Algonquins. It should be noted that currently “nothing in the Nuclear Safety Act relieves the Commission of liability in respect of a tort or extra-contractual civil liability to which the Commission would otherwise be subject.” Keen's concern as president of the CNSC is to determine if the Chalk River reactor is safe to operate. It is the government's responsibility to ensure that hospitals and researchers have an adequate supply of medical isotopes

It could be asserted that the re-framing of the safety risks and monetary liabilities associated with AECL as a global health crisis can be best described as what strategists refer to as strategic misrepresentation. Strategic misrepresentation is a dilberate, planned, and systematic distortion of actual fact in order to positively influence budgetary outcomes. During mitigations in 1997-8, AECL/MDS apparently Nordion implemented a 1996 contingency plan for unexpected shutdowns at NRU when a labour dispute threatened to shut down Chalk River. Was not that same solution available at this time? Why was a medical health crisis allowed to develop, further taxing our health care system, when MDS's may have been able to access isotopes from their Belgian subsidiary as it did before? Why did Harper fail to inform Parliament that alternate supplies of isotopes may have been available, or refer to the previous contingency plan? What kind of responsible government would fail to anticipate the potential for crisis regarding the aged nuclear facility and not have prepared a contigency plan? In a privitzed environment what type of safety plans would be in place for the potentially affected communities should there be a military attack, a terrorist attack, a natural disaster? "In effect, this was a manufactured crisis," says Dr. Ole Hendrickson. "The Harper government depicted the CNSC as being negligent by delaying critical medical diagnostic procedures for patients. This diverted attention away from AECL's negligence in failing to complete essential safety upgrades." He says the Harper government was responding to pressure from corporate health care giant MDS Nordion, and that the shortage of isotopes was an isolated problem that could have been managed…. He speculates that by diverting attention from AECL's other problems, this emergency legislation helps the federal government maintain AECL's asset value for future privatization. (http://www.goldenlakeinstitute.ca/index.cfm) It would seem that the dependancy of the nuclear medical industry on the facilities located at AECL and the apparent lack of safety net planning and back-up alternatives are more a display of the inadequacies of the current parlimentary government rather than any misjudgement of Linda Keen in her capacity as nuclear safety watch dog. Safety analyasists experts repeatedly prove that human judgement is inherently optimistc and prone to “insider view” where the focus remains locked on specific planned actions, underestimating costs, completion times, and risks while overestimating benefits of those same planned actions. Independent agencies use specialized interventions such as probabilistic safety assessment/analysis to bring broader objectivity and more accurate assessments to particulary risky and complex industries such as aviation and nuclear safety. The Sierra Club of Canada has called on Parliament to protect the Nuclear Safety Commission from political interference. It insisted the watchdog be granted powers of independence similar to those given superior court judges and the auditor general. “The safety of Canadians is threatened when our Nuclear Safety Commission is subject to the kind of bullying the minister has demonstrated,” said Stephen Hazell, the Sierra Club’s executive director. (Nuclear safety commission challenges minister, Jan 08, 2008, Toronto Sun)

Canada is sending a dangerous message to these countries when it is prepared to undermine its own watchdog and compromise the protection of its workers and the public in order to keep one of its reactors open." Auditor-General Sheila Fraser said the firing raised concerns about the independence of regulatory bodies. (30/01/2008, msn)

Can a parlimentary government heavily invested in a particular industry be expected to be objective? Self-policing of any agency, bureacracy, corporation or group is considered a conflict of interest and breach of public confidence. It must also be noted that the continued rationalization of the merits of the highly risky nuclear industry with its proven inherent cancer causing effects as the magic medical saviour in cancer treatment and diagnosis leans towards the generation of a highly unethical and irrational symbiotic relationship that no population should be forced to participate in or depend upon. Should there not be equal financing and government subsidization of the exploration of medical alternatives that do not have the exhoborent risks associated with the nuclear industry? Matters of jurisdiction become very important, especially in unceded Aboriginal territory. While the CNSC had been attempting to ensure that some semblance of public participation and consultation had taken place, even inquiring with regards to if Aboriginal groups had been adequately consulted the CNSC obviously had not been adequately informed or conducted thorough research into the matter of Aboriginal jurisdiction. According to the Environmental Assessment Screening Hearing Report of March 30, 2006, in answer to CSNC Member Dosman’s direct inquiring regarding which First Nations had been consulted Mr. Claud David, Environmental Assessment Specialist, stated, for the record, that: “We regularly send correspondence to the Algonquins of Pikwakangan which is, I believe, the Golden Lake Reserve in the area.” Member Dosman further inquires: “ May I ask, have you received any reply?” Claude David for the record, states: “We never received any reply, response from these groups.” Member Dosman continues: “And has anyone discussed this matter with them?” Claude David answers: “Staff have never gone out to meet with the chief or the tribal council to explain the reasoning for our requests for their participation in the environmental assessment process.” Member Dosman then directs his questions to Bill Coopershmidt, Atomic Energy of Canada Limited, asking: “And may we have any comment from AECL on this matter of consultation with First Nations; which groups and what the efforts were that were made?” Coopershmidt responds: “We have had on a number of occasions representatives from the Algonquins of Pikwakangan on site and as part of that we have briefed this group of individuals on a number of our activities including this particular project. So we certainly have made the nature of this project fully aware to this particular interested party.” “And were any concerns expressed by the Algonquin First Nations following what I take was a presentation to them?” furthers Member Dosman. “It’s Bill Coopershmidt, Atomic Energy of Canada Limited. There were no concerns expressed.” (2006-03-30-Transcript-PanelHearing-AECL, pg. 12) Mainstream Canadian society has come to expect the romantisized attempts of Aboriginal Canadians to act as heroic environmental watchdogs. So why no bark out of the Algonquins of Pikwakanagan, a federally funded Indian Act Band? There were no concerns expressed because the Algonquins of Pikwakanagan have no jurisdiction beyond their reserve at Golden Lake. There were no concerns expressed because the matter had never even been taken to that community for consultation. There were no concerns expressed because the vast majority of Algonquins, intimately attached to the Ottawa River, reside in Quebec, and were never informed or consulted. There were no concerns expressed because the vast majority of Aboriginal

Canadians, like the majority of mainstream Canadians, do not have the informed capacity to raise concerns. There were no concerns expressed because the issues were only advertised on the AECL website There were no concerns expressed because the actual Aboriginal community most associated with the Ottawa River, is not federally recognized and is therefore continually persecuted because of their adamant stance regarding protection of the environment and their refusal to abrogate or derogate their constitutionally protected rights and responsibilities. By submitting to the governments’ attempts force the Kichesipirini into compliance with the grotesquely flawed land claim process the Kichesipirini Algonquins would thereby eradicate their traditional jurisdiction with regards to the river. Could this partially explain why the Kichesipirini Algonquin First Nation, despite meeting the legal requirements to enter into negotiations; despite having submitted a claim without reliance on any government funding or assistance; despite demanding third party expertise and international standards of good governance be applied to the process; has been consistently rejected from land claim or treaty consultation and negotiations? Corporate Canada, parading as political representatives, are experts at circumventing legitimacy. They wiggled out of their actual obligations to the actual Aboriginal peoples of Canada by creating facsimile Aboriginal communities, under domestic policy, that are not party to the original contracts. In the same masquerade they will circumvent a commitment to safety and environmental stewardship by implementing the Cabinet Directive on Streamlining Regulation (CDSR). Sounds impressive but the CDSR, put into effect by the Canadian Government on April 1, 2007, “ introduces several key “improvements” to regulation in Canada” which actually shifts the onus away from uncompromised safety and environmental protection and marries these concerns to “ a number of performance management requirements”, most noteably to “ promote a fair and competitive market economy that encourages entrepreneurship, investment, and innovation.” Rather than solely adhereing to the scrutiny of independent expert watchdog organizations legally accountable new Canadian policy will “require timeliness, policy coherence, and minimal duplication throughout the regulatory process by consulting, coordinating, and cooperating across the federal government, with other governments in Canada and abroad, and with businesses and Canadians.” Just as the Indian Act, cloaked in a language of righteousness and protection completely eroded the legal obligations and responsibilities of the Canadian government to the original stewards of the land, through the application of the domestic policy the Cabinet Directive on Streamlining Regulation will erode the authority of the Canadian Nuclear Safety Commission. “The notion of the “independence” of a regulatory body such as the Canadian Nuclear Safety Commission (CNSC) relates, from a legal perspective, to two broad ideas: institutional independence and adjudicative independence. Both aspects of independence relate to the ultimate goal of independence, which is decision-making that is unbiased and impartial.” (Regulatory Independence: Law, Practice and Perception - A Report to the Canadian Nuclear Safety Commission)

Unfortunately for the CNSC and Keen “the Supreme Court of Canada has indicated that the institutional independence required of the judiciary in Canada for constitutional law reasons is not the same as what the law requires of an administrative tribunal. Rather, in the case of an administrative tribunal, it is for Parliament or the legislature to determine what functions a tribunal should serve, and the enabling statute must be read as a whole to determine what Parliament intended, including what Parliament intended in terms of independence. Where a statute is silent or ambiguous with respect to that intention, the principles of natural justice and procedural fairness, as developed in the common

law, will assist in the determination of the required institutional independence.” (Regulatory Independence: Law, Practice and Perception - A Report to the Canadian Nuclear Safety Commission)

Regarding issues of adjudicative independence, the “CNSC’s processes reflect efforts to ensure that individual members may successfully avoid concerns of undue influence, extraneous considerations or unfair interests. For example, the role of the CNSC’s staff regarding the CNSC’s licensing function is to provide advice and recommendations. This process ensures that all information on which the CNSC may base its decisions is made available to the affected parties, so that they can know the case to meet and have the opportunity to make representations with respect to the information.” “Aboriginal groups bring to the CNSC a unique relationship and history with the federal government, and different cultural, environmental, economic and social perspectives on nuclear issues. Working with Aboriginal communities and/or their political representatives requires a solid understanding and respect of the history and cultures of the affected communities, and their past and current relationship to the federal government.”( Regulatory Independence: Law, Practice and Perception - A Report to the Canadian Nuclear Safety Commission (CNSC)). Reliance on only those Aboriginal groups defined as Indian, Metis or Inuit by the federal government limits the consultation to only those Aboriginals represented through domestic policy and fails to recognize those Aboriginal polities, like the Kichesipirini, who have not yet acquiencsed any rights. Such affected parties have not had any opportunity; nor has there been fair or uninfluenced processes, for their participation and consultation as stakeholders. Welcome CNSC and Linda Keen to the protracted wrestling match well known to the Kichesipirini between the long arms of the law and the short arms of the Canadian state. According to the laws of natural justice, common law, civil law, constitutional law and international law the traditional rights and jurisdiction of the Aboriginal nations in existence prior to soveriengnty assertion by the Crown supercede domestic policy…until ceded through military defeat, land claims or treaty negotiations. Kichesipirini title and jurisdiction supercedes the CNSC, the provinces, and the exclusive authority of the existing Parliament of Canada. An eagle feather for Linda Keen in appreciation for her attempts at protecting our communities and our river? Perhaps. Keen has strongly recommended the issue of her performance as president of the CNSC be referred to a public inquiry, parliamentary committee or independent international review. From our perspective of centuries of persecution and discrimination only an independent international review will suffice. If Linda Keen is successful in having the issues referred for such examination, and as part of that examination the important issue of Kichesipirini jurisdiction and the rights of the traditional Algonquin Nation are also addressed, then it will be job well done. Until then it is still sword rattling and ass-covering by the colonizers on unceded Algonquin territory. Paula LaPierre Principal Sachem Kichesipirini Algonquin First Nation